Court of Appeal's Justice Mottley retires

Landmark decisions made during Justice Elliot Mottley’s decade of service

Cayman Islands Court of Appeal Justice Elliot Mottley retired this week after 10 years of service in this jurisdiction.

As one of four judges who rotate to form the three-member appeal panel, Justice Mottley took part in scores of criminal and civil decisions. While all were important to the parties involved, some had far-reaching implications because they directed the lower courts on procedure or declared what sentences were appropriate in what circumstances.

Justice Mottley was involved in some of the more noteworthy cases of the last decade.

In 2006, for example, the court clarified a section of the Misuse of Drugs Law as to how a judge or magistrate should deal with the burden of proof in cases where a defendant’s knowledge of the drugs was in question. Rather than a defendant having to rebut the presumption that he knew the drugs were in his possession, the court said it was up to the prosecution to show beyond reasonable doubt that the defense was not supported by the evidence.

In 2009, the court declared that there was no such thing as an “ordinary” rape and set out lists of aggravating and mitigating factors to be considered in sentencing.

Last year, the court dismissed two appeals against sentences for defilement. Justice Mottley was among the judges who suggested it would be appropriate to consider whether the tariff sentence should be increased.

An informal check of Cayman Compass archives shows that Justice Mottley was a member of panels that heard nine appeals against murder convictions. Of those nine, the court dismissed five appeals, allowed two and ordered two retrials.

Last year, when the court ordered the retrial of four men for the 2012 robbery of Cayman National Bank, it was Justice Mottley who told a crowded courtroom that the basis for allowing the men’s appeals had nothing to do with the facts of the case, but with a mistake made by the judge in which the lawyers on both sides had participated. He asked if it were not in the interests of justice, and in the interest of both the prosecution and the defendants, that the matter have a fair hearing. The retrial took place in February-March this year and a jury again found the men guilty.

Justice Mottley was also part of the tribunal that interpreted Cayman’s Constitution in 2013 when it rejected a challenge to Education Minister Tara Rivers’s eligibility to be a candidate in the general elections earlier that year. The court ruled that it did not have jurisdiction in the matter: the Constitution states that any question whether a person has been validly elected “shall be determined by the Grand Court, whose decision shall be final and not subject to any appeal.”

The retirement of Justice Mottley, who was scheduled to hear appeals through Friday, May 8, was marked with a special court session on Wednesday, May 6. In a ceremonial session later that day, no one referred to any particular reason for his retirement. However, since 2007, when then-Governor Stuart Jack decided on an age limit for Justices of the Court of Appeal, members have been retiring around the age of 75. Justice Mottley, born in 1939, will have observed his 76th birthday sometime this year.

Chief Justice Anthony Smellie pointed out that Justice Mottley will continue to serve on the Court of Appeal in the Turks and Caicos. He also referred to the judge’s legacy of regional service, which only a few lawyers could claim. That started in 1961 when he was called to the bar and established a practice in his native Barbados.

Appointed a Queen’s Counsel in 1980, Justice Mottley served as attorney general in Bermuda from 1995-98. In 1999 he was appointed to the Court of Appeal in Belize, with similar appointments following in Turks and Caicos, and Barbados, and then Cayman in 2005.

Sir John Chadwick, president of the Court of Appeal, made the distinction between learning and wisdom, but he said Justice Mottley possessed both. The president indicated he especially appreciated Justice Mottley’s “great skill in managing the resources of the Internet” – from finding a Privy Council decision from six years ago to determining the plural of Eggo. Paying tribute to his colleague’s experience and sound reasoning, Sir John acknowledged that he usually agreed with Justice Mottley “and if I disagree with him, I think again.”

Justice Mottley’s reply was brief. “I hope I lived up to what was expected of me as a judge of the Court of Appeal,” he said. He pointed out that there is a high level of transparency in the court because the president does not announce any decision without giving a reason for it. He thanked various people for their assistance throughout the years, especially court registrar Audrey Bodden and Director of Public Prosecutions Cheryll Richards.

“I am leaving office, but I hope to be back in Cayman,” he told the gathering.

The chief justice referred to a farewell dinner hosted by the legal profession on Tuesday night, at which attorney Colin McKie presented “an elegant summary of Justice Mottley’s career at the Bar and on the bench.” He said the speech will be posted on the judicial website.

Paying tribute to his colleague’s experience and sound reasoning, Sir John acknowledged that he usually agreed with Justice Mottley “and if I disagree with him, I think again.”

Justice Elliot Mottley

The judiciary and the two legal fraternities honored retiring Justice Elliot Mottley at a joint reception on Tuesday, May 5. From left, Chief Justice Anthony Smellie, Justice Mottley’s wife Amor Mottley, President of the Court of Appeal Sir John Chadwick, Justice Mottley, his son Stewart Mottley, and barrister Colin McKie. – PHOTO: PAT EBANKS

Court registrar Audrey Bodden presents Justice Elliot Mottley with gifts to remember Cayman by – a Cayman tie and book of island sketches by the late Ed Oliver. – Photo: Carol Winker